Litigation Section Blog: Requesting Electronic Medical Records in a ‘HITECH’ Age:

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  • Litigation Section Blog
    March
    15
    2017

    Requesting Electronic Medical Records in a ‘HITECH’ Age

    Kristen S. Scheuerman

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    The HITECH Act, made law in 2009, provides for individuals to quickly access medical records at affordable costs. With the rising costs of litigation for plaintiffs and defendants, limiting and controlling the costs of medical records acquisition in personal injury cases can be a meaningful way to effectuate settlement and protect your client’s bottom line.

    In 2009, the HITECH Act became federal law, passed as Title XIII of the American Recovery and Reinvestment Act of 2009 (the “Recovery Act,” as it is commonly referred to, was a stimulus package enacted by the 11th U.S. Congress and signed into law by President Barack Obama).

    Kristen S. Scheuerman com kscheuerman herrlingclark Kristen S. Scheuerman, Marquette 2010, is a shareholder with Herrling Clark Law Firm, Ltd., Appleton, where her practice is devoted primarily to plaintiffs’ personal injury litigation.

    HITECH, an acronym for Health Technology for Economic and Clinical Health, made billions in federal funding available to encourage hospitals and health care providers to maintain protected health information (PHI) in electronic format. The electronic records produced by hospitals, doctors, and other providers are often referred to as either electronic health records (EHR) or electronic medical records (EMR).

    Folks on both sides of the political aisle had been encouraging legislation for years, prior to the Recovery Act, that would push clinics, hospitals, and providers toward electronic record keeping in the hopes that patient care would be improved: electronic records could help reduce errors, coordinate care more effectively, and allow patients the ability to better control their own health care decisions.1

    The Greatest Benefit: Cost Savings

    From a practitioner’s standpoint in the world of personal injury litigation, one of the greatest benefits of the HITECH Act has been a cost savings to the patient/client with respect to accessing medical records.

    Pursuant to HITECH (42 U.S.C. § 17935(e)), the patient has a right to obtain his or her PHI in electronic format at a fixed cost. In my opinion, this is one of the greatest benefits. The fee may include only the cost of:

    1. labor for copying the PHI requested by the individual;
    2. supplies for creating the electronic media (e.g., CD or USB drive) if the individual requests that the electronic copy be provided on portable media;
    3. postage, when the individual requests that the copy, summary, or explanation be mailed; and
    4. preparation of an explanation or summary of the PHI, if agreed to by the individual. See 45 CFR 164.524(c)(4).

    Covered entities may opt to charge a single flat fee for records, per the Office of Civil Rights (OCR), a division of the U.S. Department of Health and Human Services (HHS), which is the department charged with overseeing HITECH compliance.

    For electronic copies of PHI maintained electronically, a covered entity may charge a flat fee for a standard request, provided the fee does not exceed $6.50.2 The flat fee is an extraordinary cost savings to the patient/client when compared with the “traditional” cost of records.

    In Wisconsin, records (outside of HITECH) can be billed per page, with fees set by the Department of Health Services and codified at Wis. Stat. section 146.83(3f)(b), starting at $1.00 per page. Assuming you request more than six pages of records, the HITECH flat fee will always save you money, as compared to a traditional request.

    A Faster Response Rate

    However, a substantial cost savings is not the only HITECH benefit. Records requested pursuant to HITECH must be produced in a timely manner – specifically within 30 days of the request. 45 C.F.R. § 164.524(b)(2). My office has enjoyed a meaningfully faster return of records when using HITECH authorizations than with the traditional third-party HIPAA request.

    Making a HITECH Request

    All that is required to make a HITECH request is that the “request must be in writing, signed by the individual, and clearly identify the designated person and where to send a copy of protected health information.” 45 C.F.R. 164.524(c)(3)(ii).

    HITECH applies broadly and includes “business associates” (think IOD, Healthport, Ciox) as the federal law defines a “covered entity” to include “health care providers, health plans, health clearinghouses, and business associates.” 45 C.F.R. § 160.1033.This is important because the majority of records we obtain are obtained through a clearinghouse such as IOD.

    When we first started using HITECH requests with clearinghouses like IOD, our requests were often denied or rejected, with the explanation that HITECH applies to providers only. This, of course, is not accurate, and HITECH must be complied with by providers and records-clearinghouses alike.

    When we first started using HITECH requests years ago, we found, like so many others, that our requests were met with confusion, skepticism, and rejection. However, providers have been increasingly willing to listen, to do what is needed to understand the requirements of HITECH, and to appropriately respond to such requests.

    We feel very fortunate that today, requesting records pursuant to a HITECH request is a fairly seamless process. We remain surprised at the number of attorneys, whether from the plaintiff bar or the defense bar, who seem to have no interest in HITECH requests. If medical records are available quickly and for substantially less money, why would that not be an attractive option?

    Cost Savings Examples with HITECH Requests

    Perhaps the cost savings is not entirely appreciated. To that end, I will share two examples:

    1. We sent a HITECH request on behalf of a client, and the request was refused on the grounds that a HIPAA authorization was required. After several phone calls and discussions, the previously withheld records finally came with a bill from IOD, which included a “tiered” pricing for labor and a demand for payment in the amount of $393.76. We filed a complaint with OCR. Ultimately, the bill was waived in its entirety, and the records remained with us, at absolutely no cost to the client. Even had the bill not been waived, HITECH pricing would have been either $6.50 or somewhere around a “reasonable labor fee,” so perhaps $25 or $30. Although $393.76 may not seem worth the fight, from the plaintiff’s perspective, at least, it certainly is. Imagine that you are an injured party who has a modest personal injury case and who is ultimately responsible for the costs expended on his or her file. The margins on a modest pre-suit settlement can be greatly impacted by a savings of several hundred dollars, making settlement more attractive, or in some cases, possible.

    2. Our greatest HITECH success story involved a massive records request in a large medical malpractice case, where thousands and thousands of pages of lab reports, chart notes, and records were needed. The records were initially sent in paper form with a bill for just over $7,000. We disputed the bill (and the format the records were sent in – we specifically requested a CD, which also makes adding records to your own electronic file a breeze, as nothing needs to be scanned), and a correct bill was sent, along with a number of CDs. We paid just over $50.00 for the records.

    Whether you represent an injured party, an insurance company, or an individual defendant, it is hard to argue that those kind of savings are not incredibly meaningful.


    Endnotes


    1See Benefits of Electronic Health Records (EHRs), last accessed March 6, 2017.

     2See Individuals’ Right Under HIPAA to Access their Health Information 45 C.F.R. § 164.524; New Clarification- $6.50 Flat Rate Option is Not a Cap on Fees for Copies of PHI, last accessed March 6, 2017:

    “In the case of requests for an electronic copy of PHI maintained electronically, covered entities may: (3) charge a flat fee not to exceed $6.50 (inclusive of all labor, supplies, and postage). Charging a flat fee not to exceed $6.50 per request is therefore an option available to entities that do not want to go through the process of calculating actual or average allowable costs for requests for electronic copies of PHI maintained electronically.”

    3“Business associate includes: (i) A Health Information Organization, E-prescribing Gateway, or other person that provides data transmission services with respect to protected health information to a covered entity and that requires access on a routine basis to such protected health information. (ii) A person that offers a personal health record to one or more individuals on behalf of a covered entity. (iii) A subcontractor that creates, receives, maintains, or transmits protected health information on behalf of the business associate.”45 C.F.R. § 160.103(3).





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